LinkedIn Messages Spark a Lawsuit

The use of social-networking sites to breach the terms of noncompete agreements will be the focus of an unprecedented lawsuit filed by an IT staffing firm against a former employee. Chances are, the courts will rule that it's the message, not the medium, that matters, experts say.

Tuesday, June 1, 2010
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If you're one of the 65 million people with LinkedIn accounts, you probably use the service to invite other members to join your online network of business contacts, participate in online discussions or, perhaps, set up in-person meetings to discuss business-related matters.

If you're using LinkedIn to reach out to former colleagues, however, you might want to do a quick review of your noncompete agreement first; otherwise, you could end up in court.

Brelyn Hammernik, a technical recruiter, was recently sued by her former company, Hanover, Md.-based IT staffing firm TEKsystems, after she sent messages to members of her LinkedIn network -- members who also happened to be current employees of TEKsystems.

In a lawsuit filed in U.S. District Court in Minneapolis, the company contends that Hammernik's communications violated a noncompete agreement that bars her from contacting former clients and co-workers.

Hammernik left TEKsystems in November and went to work for Horizontal Integrations, an Edina, Minn.-based IT consulting firm that is also named in the lawsuit.

Laura Prezzi, a spokeswoman for TEKsystems, says the company will not comment on any pending litigation. 

TEKsystems' lawsuit is unprecedented, say employment attorneys Megan Backer and Sandra Jezierski of Nilan Johnson Lewis in Minneapolis.

"This will be one of the first cases to create precedent regarding social networking and noncompete agreements," says Backer.

Backer and Jezierski say the lawsuit raises some pressing questions, including whether compliance will require individuals to "un-friend" colleagues and clients who are members of their online networks when they leave organizations.

"It's possible that the courts may rule that you have to disconnect from people within your network who still work at the company," says Jezierski.

Other issues include how the courts will apply "solicitation" to forums such as LinkedIn, which primarily emphasize professional networking, and whether social-networking correspondence and content will need to be divulged during the litigation process, says Backer.

Regardless of the larger issues raised, at least one legal expert thinks this particular case is a clear-cut example of outright solicitation.

Rob Radcliff, an attorney at Gruber, Hurst Johansen and Hail in Dallas who has represented individuals and businesses in noncompete disputes, posted on his Smooth Transitions law blog an excerpt from one of the e-mails Hammersnik sent:

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"Tom -- Hey! Let me know if you are still looking for opportunities! I would love to have you come visit my new office and hear about some of the stuff we are working on! Let me know your thoughts! Brelyn"

"Evidence," writes Radcliff, "doesn't get much better" than that LinkedIn message.

"Needless to say, it will be very difficult for Hammernik to defend this type of conduct," he writes.

While noting that individuals "routinely use LinkedIn and other social networking sites to update contacts on their whereabouts," he writes: "Usually, most updates don't contain an outright solicitation like this."

Jezierski and Backer agree that TEKsystems' suit has merit.

"Communication is communication, regardless of the format," says Jezierski.

They suggest that HR specify in employee handbooks and noncompete agreements that wrongful contact applies to multiple mediums.

"It would be helpful for employers to be very clear that noncompete agreements cover all forms of communication, electronic or otherwise," says Backer. 

Regardless of how the court rules, both sides need to be savvy when it comes to social-networking, writes Radcliff:

"The moral of this story: Employees -- be smart about communications that are blatant solicitations. Employers -- watch former employees' social-networking activities once they have departed."

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